UNITED STATES EX REL. RUBIN v. MAGRUDER

55 F. Supp. 947 (1944) | Cited 0 times | D. Rhode Island | May 31, 1944

HARTIGAN, District Judge.

George R. Rubin, of Brooklyn, New York, petitions this court for a writ of habeas corpus for the release from the United States Navy of his son, Mortimer J. Rubin, who has been inducted and, according to the petitioner, is now being detained and restrained of his liberty in violation of law.

The respondent, the Commanding Officer, United States Naval Training Station, Nawport, Rhode Island, filed a traverse asserting that he holds Mortimer J. Rubin by authority of the statutes of the United States as a member of the United States Navy, he having been lawfully selected and inducted under the provisions of the Selective Training and Service Act, as amended, 50 U.S.C.A.Appendix § 301 et seq. The respondent also filed a motion that the petition for a writ of habeas corpus be dismissed "for the reason that said petition wholly fails to show any illegal imprisonment or restraint of liberty, in that said petition fails to aver or show that the Local Board and Board of Appeal failed to consider relator's evidence or review the facts of his case and that said petition fails to aver or show that relator submitted proof to the Local Board and Board of Appeal that Yeshiva Beth Joseph Rabbinical Seminary was a theological or divinity school 'recognized as such for more than one year prior to the date of enactment' of the Selective Training and Service Act of 1940."

Mortimer J. Rubin (hereinafter referred to as the registrant) contends that his change of classification from IV-D to I-A is an illegal, arbitrary and capricious act on the part of Local Board No. 203, Kings County, Brooklyn, New York, and is contrary to the provisions, rules and regulations of the Selective Training and Service Act.

Section 5(d) of the Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, § 305(d), provides:

"Regular or duly ordained ministers of religion, and students who are preparing for the ministry in theological or divinity schools recognized as such for more than one year prior to the date of enactment of this Act, shall be exempt from training and service (but not from registration) under this Act."

Section 622.44 S.S.R., provides:

"Class IV-D: Minister of religion or divinity student. (a) In Class IV-D shall be placed any registrant who is a * * * student preparing for the ministry in a theological or divinity school which has been recognized as such for more than 1 year prior to the date of enactment of the Selective Training and Service Act. (September 16, 1940)."

The registrant was born in Brooklyn, New York, on May 29, 1923, and registered on June 30, 1942, with Local Board No. 203, Kings County, Brooklyn, New York.

He executed his questionnaire on November 19, 1942, and in it submitted the following information: Series III. -- Education Name of Vocational School, Course of Study Length of Time College, or University Attended Hebrew Academy of Boro Park Parochial Education 2 yrs.Yeshiva Toras Emeth Jewish Parochial School 1 yr.Rabbi Jacob Joseph School Jewish Parochial School 7 yrs.Talmudical Academy Divinity Studies 5 yrs.Mesivtah Rabbinical Seminary Theology 1/2 yr.New York University Speech -- Major 1 yr. Sociology -- Minor

Back to top